LITTLETON (AP) — The Executive Council refused to confirm Attorney General Gordon MacDonald as chief justice of the New Hampshire Supreme Court on Wednesday in a vote the governor called an alarming departure from tradition and a breach of the public trust.
The Democrat-led council voted 3-2 along party lines against MacDonald, who was nominated by Republican Gov. Chris Sununu to replace retiring Chief Justice Robert Lynn.
While MacDonald had broad support from the legal community — including from Lynn and his two predecessors — critics raised questions about his lack of experience as a judge and his involvement in conservative Republican politics.
At his public hearing last month, MacDonald insisted he would uphold the law impartially and protect the independence of the judiciary, but councilor Andru Volinsky said that wasn't enough. He said he wanted MacDonald to distance himself from the "shockingly extreme views" of politicians he had supported.
"Instead Mr. MacDonald said he would follow the law of the land as if it were a protective talisman," said Volinsky, D-Concord. "I'm afraid the extremism of the day has conspired to defeat this nomination. In these times, I cannot assume that the law of the land will hold."
Councilor Deb Pignatelli, D-Nashua, accused Sununu of trying to stack the court with conservative justices at a time when the court likely will be ruling on important issues, such as voting and reproductive rights, gun safety, education funding.
"We all want the highly qualified person with unquestioned ethics, that is the bare minimum. But I'm seeking more — a court balanced on the political-philosophical spectrum," she said. "And wouldn't it be nice to have gender balance as well?"
Expressing his disappointment, Sununu said the council, the five-member group that approves state contracts and nominations to courts and agencies, had thrown a long tradition of nonpartisan judicial selection "right out the window."
"That's what I'm taking home from this more than anything, that we have changed the paradigm, that we have changed our system going forward and politics is clearly, in the words of our own councilors, going to be a litmus test," he said. "I personally think that that political extremism is a breach of the public trust."
Sununu said citizens should be "alarmingly concerned" at the interjection of "Washington, D.C., theatrics" into the process and said he will hold off on making further nominations for a while.
The council had been set to also vote on the nomination of Martin Honigberg to a lower court, but Sununu withdrew it, prompting Pignatelli to call him "childish."
Had he been confirmed, MacDonald would have been the third Sununu appointee to the high court without experience as a judge, and the first in at least a century to become chief justice without prior time on the bench.
"That's because a man like Gordon MacDonald doesn't come along very often," said Councilor Russell Prescott, R-Kingston. "This man we're talking about today is the cream of the crop. He is a 100-year man."
MacDonald told reporters later he was grateful for the support he received from sitting and retired judges, lawyers, advocates and friends "all representing a broad spectrum of political views." He also said he was honored to lead the attorney general's office.
"Together we have important work to do, and I'm going back to Concord to do that work," he said.